FIRE SAFETY COMMISSION Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION DE LA SÉCURITÉ-INCENDIE Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
In the matter of an appeal under s. 26(1) of the Fire Protection and Prevention Act, 1997, c. 4 and the Ontario Fire Code, O. Reg. 213/07
Between:
Algonquin and Lakeshore Catholic District School Board
Appellant/Moving Party
And
Kingston Fire and Rescue Services
Respondent/Responding Party
MOTION ORDER
Panel: Katie Osborne, Associate Chair
Fire Safety Commission
For the Appellant: Patricia Harper and Michael Tersigni, Counsel for the Appellant
For the Respondent: Andrew Reeson, Counsel for the Respondent
By written submissions
OVERVIEW
[1]. The Respondent, Kingston Fire and Rescue Services (“KFRS”) issued an Inspection Order to the Appellant, Algonquin and Lakeshore Catholic District School Board (the “School Board”). The Inspection Order required the School Board to construct a fire separation in the stairwells at one of its schools.
[2]. Following a review of the Inspection Order, the Fire Marshal Delegate upheld the Inspection Order. The School Board appealed to the Fire Safety Commission (the “Commission”), but went on to complete the work required by the Inspection Order prior to a final disposition of the appeal.
[3]. KFRS now brings a motion to have the School Board’s appeal dismissed on the grounds that the issues in the appeal are moot because the School Board has complied with the Order that was the subject of the appeal to the Board. The School Board opposes KFRS’ motion.
[4]. For the reasons that follow, I deny the motion to dismiss the appeal.
BACKGROUND
Overview
[5]. The background facts in this matter are not in dispute.
[6]. On or around May 30, 2014, KFRS issued an Inspection Order that required the School Board to construct a fire separation in the north and south exit stairwells in one of its schools. The School Board requested a review of the Inspection Order by the Fire Marshal. On February 6, 2015, the Fire Marshal Delegate issued a decision upholding the Inspection Order (the “Review Decision”). On February 25, 2015, the School Board appealed the Review Decision and Order to the Commission.
[7]. The School Board’s grounds of appeal are as follows:
(a) The Inspection Order is too vague;
(b) The property in question is exempt from the requirements of the Inspection Order because:
It was built in accordance with the requirements of the Building Code as it existed at the time of construction; and
It is a building regulated under the Education Act and therefore the retrofit provisions of the Fire Code do not apply; and
(c) The Inspection Order was issued pursuant to subsection 21(1)(f) of the FPPA where 21(1)(b) is the applicable section and, as such, the Inspection Order attempts to do indirectly what cannot be done directly.
[8]. While the School Board was of the view that KFRS did not have the authority to issue the Inspection Order, the School Board undertook the work necessary to comply with the Inspection Order prior to a final disposition of the appeal.
[9]. At a case conference held on September 25, 2015, the parties agreed that the work required to bring the school into compliance with the Inspection Order had been completed. Counsel for the School Board indicated that even though the School Board had complied with the Inspection Order, it wanted to maintain the appeal. KFRS took the position that the matter was moot. On October 27, 2015 the Commission issued an order to close the file on the grounds that the issues flowing from the Inspection Order were moot.
[10]. On November 3, 2015, the School Board requested a review of the Order of the Commission that dismissed the appeal. The School Board further requested that the Commission’s Order be cancelled and the appeal be restored. The School Board took the position that the Commission failed to provide the required level of procedural fairness in dismissing the appeal, and that it erred in applying the legal doctrine of mootness. KFRS opposed the School Board’s request. Both parties filed written submissions in support of their positions.
[11]. On January 25, 2016, the Commission cancelled its October 27, 2015 Order and restored the appeal. The basis for the Commission’s decision was that the Order dismissing the appeal was made in a manner that lacked procedural fairness. The Commission did not make a finding on the issue of mootness.
[12]. KFRS now brings a motion before the Commission to have the appeal dismissed on the basis that the issues raised by the appeal are moot because the Board has complied with the Inspection Order. The School Board opposes the motion.
ISSUES
- The leading case on mootness is Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342 (“Borowski”). In that case the Supreme Court of Canada outlined a two-step analysis when determining whether to hear an allegedly moot case. It requires consideration of the following two issues:
(a) First, is the dispute between the parties moot?
(b) Second, if the dispute is moot should the Commission exercise its discretion to hear the appeal?
ANALYSIS
The Law on Mootness
- In Borowski, the Supreme Court of Canada described the doctrine of mootness as follows:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which merely raises a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice….
The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case…
- The Supreme Court went on to outline three factors to be considered when a court or tribunal is considering whether to exercise its discretion to hear a moot case:
(a) the requirement of an adversarial context;
(b) the concern for judicial economy; and
(c) the need for courts and tribunals to demonstrate a measure of awareness for their proper law-making function.
The decision maker must weigh the presence of all three factors with a view to the circumstances of each case, and assess whether the factors favour the exercise of discretion to hear the matter on its merits.
The onus rests on the party seeking to have the moot matter heard – in this case the School Board – to demonstrate why the Commission should depart from its usual practice of refusing to hear moot matters.
The Parties’ Positions
KFRS’ contends that completion of the work necessary to comply with the Inspection Order extinguished the live controversy between the parties. KFRS submits that the questions posed by the Appellant’s appeal are now an abstract proposition of law and that success would have no practical effect on the parties. KFRS argues that the appeal is therefore moot. KFRS takes the position that the mere fact that the School Board may at some future time again challenge an order issued pursuant to s. 21 of the FPPA does not give the Appellant a direct or indirect interest in the present appeal so as to give continued life to the controversy which precipitated it.
While recognizing that the doctrine of mootness is not absolute, KFRS submits that the three factors to be considered in determining whether to exercise discretion to hear a moot case do not support a decision to depart from the usual practice of refusing to hear moot matters in this case.
The School Board takes the position that KFRS did not have the authority to issue the Inspection Order against the Board in the first instance. The School Board submits that there is an exemption from the work ordered in the Inspection Order for owners of buildings regulated under the Education Act, R.S.O. 1990, e.E.2 (the “Education Act”), and that the Inspection Order was ultra vires KFRS’ jurisdiction under the FPPA. The School Board argues that this important issue remains outstanding.
The School Board further submits that even if the appeal is moot, the Commission should exercise its discretion to hear the appeal on the merits, based on consideration of the three factors outlined in Borowski.
Analysis
In Borowski, the court outlines a two-step analysis for mootness issues. The first step requires the Commission to determine whether the dispute between the parties is moot. To do this, the Commission must determine whether the required tangible and concrete dispute has disappeared rendering the issues academic.
KFRS submits that the controversy between the parties disappeared following the School Board’s compliance with the Inspection Order, such that a review by the Commission of the authority to issue the Inspection Order is a hypothetical, academic or abstract proposition of law, upon which the Commission would provide opinions on a speculative problem.
The School Board submits that KFRS mischaracterizes the nature of the controversy between the parties. They argue that the controversy between the parties concerns the interpretation and interaction of the relevant provisions of the FPPA, the Fire Code, and the Education Act. Further, the School Board argues that the real controversy to be addressed in the appeal concerns whether KFRS had the legal authority to issue the Inspection Order in the first place. They submit that this issue remains.
[13]. Applying the guidance from Borowski, I am of the view that the issues on appeal in the present case are not moot as the concrete dispute between the parties did not disappear when the School Board completed the work required by the Inspection Order.
[14]. The live controversy between KFRS and the School Board is not whether the School Board complied with the Inspection Order (which it did), but rather whether KFRS had the authority to issue the Inspection Order in the first place. The authority of KFRS to issue the Inspection Order is the live controversy between the parties and this issue has not been resolved as a result of the work being done. Therefore, the appeal is not moot.
[15]. I note that the factual context of this case is important. Many appeals to the Commission involve discrete cases where the key issue(s) in dispute might indeed disappear following compliance with an inspection order. However in this case the Commission’s determination of the jurisdiction of KFRS to issue the Inspection Order remains, and is neither academic nor abstract.
[16]. The School Board notes that KFRS has ongoing responsibility and jurisdiction for fire safety at the school that was the subject of the Inspection Order being appealed, as well as other schools that are under the jurisdiction of the School Board. As such, resolution of the issue of whether the School Board is entitled to rely on exemptions for school boards under the FPPA, and whether KFRS acted outside of its authority when it issued the Inspection Order, is of continuing importance to the School Board and KFRS. A determination of this issue may also have a practical effect upon other fire and rescue services and school boards across the province.
[17]. In Re Horsemen’s Benevolent and Protective Association v. Ontario Racing Commission et al., 1997 CanLII 1907 (ON CA), 37 O.R. (3d) 430 [1997] (“Horsemen’s”) the Court of Appeal for Ontario was asked to determine whether the Ontario Racing Commission (the “ORC”) had jurisdiction to impose a formula for the division of the proceeds of betting upon the various associations it governed. The Respondent in that case had submitted that that the issue was moot because the race in question had been run, the purses paid, and the money distributed in the manner called for by the ORC.
[18]. The Court in Horsemen’s found that its determination of the proper jurisdiction of the ORC in acting under its statutory authority was far from academic or abstract. Rather, given the ongoing responsibility and jurisdiction of the ORC over horse racing in Ontario, and the ongoing relationship it had with those under its jurisdiction, the issue in the case was of continuing importance. The Court held that a decision of the Court would assist in defining the scope of the ORC’s authority in the relationship and determined that the issue in that case was not moot.
[19]. In the present case the School Board points to the ongoing relationship between the parties. The School Board also estimates that it has approximately five schools that could be subject to an order identical to or similar to the Inspection Order in this case. The estimated cost of completing fire separation work at these schools is significant, at $887,442.60. The School Board raises the possibility of incurring significant additional costs for other matters if the interpretation and application of paragraph 21(1)(f) of the FPPA is permitted to stand. The School Board submits that a determination of the scope of the authority granted to KFRS under the FPPA is therefore necessary.
[20]. The School Board argues that a decision of the Commission in this matter will have the effect of resolving the controversy concerning the validity of the Inspection Order. This, in turn, will have the practical effect of determining whether the School Board needs to undertake modifications of the schools that might be at risk of non-compliance with the Fire Code, and allow the School Board to budget the costs of completing any modifications.
[21]. Ultimately, I conclude that the issues on appeal in the present case are not moot as the concrete dispute between the parties did not disappear when the School Board completed the work required by the Inspection Order.
[22]. I note that even if the matter in this case was moot, the question would remain whether the Commission should exercise its discretion and proceed to hear the case in any event. In my view the answer to that question is yes.
[23]. In Oshawa (City) v. Rayplex Ltd., [2006] O.J. No.5254 (On. S.C.J.) (“Rayplex”) the Ontario Divisional Court overturned the decision made by the Fire Safety when the Commission determined that an appeal was moot on the basis that the work in an inspection order had been completed. The Court found that the Commission committed a legal error by taking an incorrect legal view of mootness and “by failing to recognize the important public issues.”
[24]. While the Rayplex decision offers little analysis of these issues, the Court’s point about important public issues is a significant one. The FPPA deals with critical issues of public protection and safety. The issues in the present appeal are particularly important, given that they relate to safety in schools. They may also have implications (financial and safety) for other schools and school boards across the province.
[25]. While not determinative, it would be unfortunate if the prospect of rendering an appeal moot discouraged good faith efforts by this or other school boards to remedy potential fire safety issues in any similar cases in future. Given the fact that the buildings that may be similarly affected are schools, and therefore occupied primarily by children, the public interest in resolving the outstanding legal issues is all the more compelling.
[26]. It is well-settled that a court or tribunal may exercise discretion in favour of hearing a moot appeal where the purposes underlying the general rule against hearing a moot case are outweighed by the interests served by a determination of the merits of the appeal. Consideration of the three factors outlined in Borowski, with a view to the unique circumstances of this particular case, would favour the exercise of discretion to hear the appeal. An adversarial context remains in this case. More important, because of its broader implications and public safety considerations both judicial economy and the public interest favour exercising discretion to hear the present appeal even if the case were moot.
ORDER
(a) The Respondent’s motion to dismiss the appeal for mootness is denied.
(b) The Commission will contact the parties and schedule a Case Conference to discuss next steps in preparation for a hearing.
Released: August 18, 2016
Katie Osborne, Associate Chair